SERVICE AGREEMENT
THIS SERVICE AGREEMENT (the “Agreement”) is made and entered into this 3rd day
of April 2002, by and between Comcast Cablevision of the South, Inc. (the “Company”), whose
address is 29777 Telegraph Road, Suite 4400B, Southfield, Michigan 48076, and Oakland
University, a Michigan constitutional body corporate (the “Owner”), whose address is 144 Oakland
Center, Rochester, Michigan 48309-4401 and who owns or has control over certain real estate and
improvements listed on Attachment A consisting of One Thousand Sixty (1060) combined
residential units (the “Premises”).
The Company has been granted by the Cities of Auburn Hills and Rochester Hills,
respectively (the “City” or the “Franchise Authority”) the franchise to construct and operate a cable
communications system in the cities of Auburn Hills and Rochester Hills, respectively. The Owner
desires to provide cable communications services to the Premises, including, but not limited to,
cable television service (the “Services”) and the Company is willing to maintain and operate a cable
communications system for such purposes on the Premises in accordance with the terms and
conditions below.
NOW, THEREFORE, for good and valuable consideration, the parties, intending to be
legally bound, agree as follows:
1.
The System. The Company has installed all facilities necessary to transmit the Services to
the Premises (the “System”). The ownership of all parts of the System installed by the
Company, including but not limited to all cables, wires, equipment and appurtenant devices,
shall be and will remain the personal property of the Company. At no time during or after
the term hereof shall the Owner or any third party have the right to use the System or any
portion thereof for any purpose, notwithstanding the provisions of paragraph 12 hereto.
2.
Access. The Owner will allow Company employees to enter all common areas of the
Premises for the purposes of auditing, disconnecting service, installing, maintaining,
repairing, replacing or removing equipment and apparatus connected with the provision of
the Services and will use reasonable efforts to assure the Company access to any parts of the
Premises over which it does not have control for the same purposes. The Owner will also
allow Company employees reasonable access to designated reception areas in the Premises,
upon prior notice and approval of the Owner, to market Services to residents of the
Premises. Owner will supply the names and unit numbers of residents at reasonable
intervals. Owner shall reasonably cooperate with the Company to prevent (i) the
unauthorized possession of converters or channel selectors and (ii) the unauthorized
reception of the Services.
MDU 204 (9/01)
3.
Delivery of Services. The Owner has the authority to grant and does hereby grant to the
Company during the term hereof the nonexclusive right and limited license to construct,
install, operate and maintain multi-channel video distribution facilities on the Premises
(whether by cable, satellite, microwave or otherwise) and to deliver the Services to the
Premises, unless otherwise required by applicable law.
Services to the Premises shall be provided immediately upon execution of this Agreement,
except that Services to the University Student Apartments that are currently under
construction shall be provided no later than August 21, 2002.
The Company agrees to install, at its sole cost and expense, all facilities necessary to
transmit the Services to the University Student Apartments, including, but not limited to,
distribution cables, amplifiers, pedestals, lock boxes, cable home wiring, cable home run
wiring, connectors, splitters, wall plates, equipment and appurtenant devices. All work
shall be done by the Company in a proper and workmanlike manner in accordance with
Federal Communications Commission regulations, industry standards and local codes. The
Company agrees to repair and/or replace any damage to the University Student Apartments
resulting from installation of the facilities. Prior to such installation, construction plans
prepared by the Company shall be reviewed and approved by the Owner, provided that
Owner’s approval shall not be unreasonably withheld. Owner shall locate on such plans all
underground facilities existing on the Premises. Owner shall give the Company at least 20
days notice of the opening of utility trenches for the University Student Apartments so that
the Company may, at its option, install the facilities in the common utility trenches, and
shall otherwise cooperate with the Company in the construction and installation of the
facilities for the University Student Apartments.
The Company will be responsible for obtaining all necessary permits, licenses and
approvals in connection with the construction, installation and operation of the System. All
construction, installation, operation, maintenance, and delivery shall be at the sole cost and
expense of the Company.
4.
Fees and Charges for Services. The terms, conditions, charges and fees for Preferred
Services provided to residents of the Premises shall be contained in Attachment B, a Bulk
Bill Addendum between the Owner and the Company. The Company will provide the
Owner with those reasonably comparable products and services as may be provided
by other cable communications providers within the City.
5.
Expanded Service.
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In addition to Preferred Service, the Company may provide to individual residents
certain optional services, including but not limited to, additional connections and
pay television services ("Expanded Service"). Expanded Service will be addressed
in separate agreements with individual unit residents. The Owner assumes no
liability or responsibility for Expanded Service charges contracted for by individual
residents. The Company will be solely responsible for all billings and collections for
Expanded Service charges contracted for by individual residents.
In addition, throughout the term of this Agreement and any renewals thereof and
upon the Owner’s request, the Company will also provide Expanded Service to one
thousand sixty (1060) outlet(s) in one thousand sixty (1060) units pursuant to a bulk
bill addendum between the Owner and the Company. Any such bulk bill addendum
shall contain those terms, conditions, charges and fees regarding Expanded Service
that are mutually acceptable to the Owner and the Company.
6.
Customer Service. The Company shall provide customer service in accordance with its
franchise agreement with the Franchise Authority. The Company will maintain a local or
toll-free telephone number which will be available to its subscribers 24 hours a day, seven
days a week. Company representatives will be available to respond to customer
telephone inquiries during normal business hours. The Company will begin working on
service interruptions promptly and in no event later than the next business day after
notification of the service problem, excluding conditions beyond the control of the
Company.
7.
Interference. Neither the Owner nor anyone operating on its behalf will tap or otherwise
interfere with the System for any purposes. Notwithstanding anything else in this
Agreement to the contrary, the Company shall not interfere with the right of an individual
resident to install or use his own private reception device, provided, however, that should
any device or any facility belonging to a resident (or Owner) not comply with the technical
specifications established by the FCC, including, but not limited to, signal leakage, which
interferes with the Company’s delivery of the Services, the Company reserves the right to
discontinue service to the Premises, or, at the Company’s discretion, the individual unit,
until such non-conformance is cured by the Owner or resident as the case may be.
8.
Term. This Agreement, when duly executed by both parties, shall constitute a binding
agreement between the Owner and the Company and their respective successors and assigns
for a term of ten (10) years. This Agreement shall automatically renew for successive
periods of two (2) years unless either party shall provide the other with a minimum sixty
(60) days written notification of its intention not to renew at the end of the then current
term.
9.
Insurance. The Company agrees to maintain public liability insurance and property
damage liability insurance as required by the Company's franchise agreement with the
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Franchise Authority. Upon request, the Company will provide the Owner with a certificate
evidencing such insurance.
The Company also agrees to maintain the following insurance during the term of this
Agreement:
Subpart A.
1.
Comprehensive General Liability – Naming Owner as an additional insured and
including: Premises-Operations; Independent-Contractors’ Protective; Products &
Completed Operations; Broad Form Property Damage; and Contractual.
a. Combined single limits for bodily injury and property damage:
i. One Million Dollars Each Occurrence
ii. One Million Dollars Annual Aggregate
b. Products and Completed Operations Insurance to be maintained for one year
after termination of the Agreement.
c. Property Damage Liability Insurance shall include X, C and U coverage.
2.
Workers’ Compensation – Employer’s Liability – State Statutory requirement One
Million Dollars.
3.
Comprehensive Automobile Liability with combined singled limits for bodily injury
and property damage of: One Million Dollars each occurrence.
Certificates of insurance are to be furnished to Owner for all coverage prior to
commencement of any work by the Company under this Agreement. The Company shall
provide certificates of insurance at each insurance policy renewal date during the term of
this Agreement.
The Company shall be responsible for any deductible or retention
amounts on Company’s policies.
The above policies shall contain a covenant requiring 30 days written notice to the Owner
before cancellation, reduction or other modifications of coverage.
10..
Indemnification. The Company shall indemnify, defend and hold the Owner harmless
from any and all claims, damage or expense arising out of the actions or omissions of the
Company, its agents and employees with respect to the construction, installation, operation,
maintenance or removal of the System and the Services provided to residents at the
Premises pursuant to this Agreement. The Owner shall indemnify, defend and hold the
Company harmless from any and all claims, damage or expense arising out of the actions or
omissions of the Owner, its agents and employees. In no event shall either Owner or the
Company be liable for any consequential, indirect, incidental, special or punitive damages
whatsoever. Nothing in this Agreement shall create or be deemed to create a waiver of
governmental immunity by the Owner. This indemnification provision shall survive the
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expiration or termination of this Agreement for claims, damage or expense arising out of the
action or omissions of the Company arising prior to the termination or expiration of this
Agreement.
11.
Termination.
a)
Default. In the event either party defaults in the performance of any of the material
terms of this Agreement, the non-defaulting party shall give the defaulting party
written notice specifying the nature of such default and identifying the specific
provision in this Agreement which gives rise to the default. The defaulting party
shall have sixty (60) days to either (i) notify the non-defaulting party that no default
occurred, (ii) cure the default, or (iii) if such default is incapable of cure within such
sixty (60) day period, commence curing the default within such sixty (60) day period
and diligently pursue such cure to completion. In the event the default is not cured,
or a cure is not commenced, within such sixty (60) day period, the non-defaulting
party may terminate this Agreement upon thirty (30) days written notice without
further liability of either party.
b)
Loss of Franchise. This Agreement shall terminate automatically without any
further liability on the part of the Company in the event the Company’s franchise
with the Franchise Authority or any renewal thereof ceases to be in effect.
12.
Removal of System. Upon termination of this Agreement for any reason, the Company
shall have a period of six (6) months in which it shall be entitled but not required to remove
the System, excluding the cable home wiring but including the cable home run wiring. The
Company shall promptly repair any damage to the Premises occasioned by such removal.
13.
Miscellaneous.
a)
Force Majeure. The Company shall not be liable for failure to construct or to
continue to operate the System during the term hereof due to acts of God, the failure
of equipment or facilities not belonging to Company (including, but not limited to,
utility service), denial of access to facilities or rights-of-way essential to serving the
Premises, government order or regulation or any other circumstances beyond the
reasonable control of the Company.
b)
Assignability; Binding Effect. This Agreement may not be assigned by either
party without the other party’s prior written consent, and such consent will not be
unreasonably denied. The assignee shall agree in writing to be bound by all the
terms and conditions hereof. In the event the Owner sells, assigns, transfers or
otherwise conveys the Premises to a third party, the Owner shall give the
Company prior written notice of such change of ownership or control. Owner
shall cause any new owner or controlling party to expressly assume this
Agreement and agree to be bound by its terms. This Agreement shall be binding
upon the parties and their respective successors and assigns.
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c)
Applicable Law. This Agreement shall be governed and construed in accordance
with applicable federal laws and regulations and by the laws of the jurisdiction in
which the Premises are located, including laws prohibiting unlawful
discrimination, without regard to its choice of law principles.
d)
Invalidity. If any provision of this Agreement is found to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of this
Agreement will not be affected or impaired.
e)
Recording. The Company may record Attachment C, a Memorandum of
Agreement, in the public records of the county in which the Premises are located.
f)
Notices. Whenever notice is provided for herein, such notice shall be given in
writing and shall be hand delivered, sent by certified mail, return receipt
requested, or sent via overnight courier to the address set forth in the first
paragraph of this Agreement or to such other address as may subsequently in
writing be requested.
g)
Entire Agreement; Amendments. This Agreement including Attachment A,
Attachment B - the Bulk Bill Addendum including Exhibit A, and Attachment C –
the Memorandum of Agreement constitute the entire agreement between the
parties and supersedes all prior agreements, promises and understandings, whether
oral or written. This Agreement shall not be modified, amended, supplemented or
revised, except by a written document signed by both parties.
h)
Authority. Each party represents to the other that the person signing on its behalf
has the legal right and authority to execute, enter into and bind such party to the
commitments and obligations set forth herein.
i)
Dispute Resolution. If either party commences legal action to enforce this
Agreement, then the prevailing party will be entitled to recover from the losing
party its reasonable attorney fees and other fees and costs, including without
limitation those of in-house counsel. A court of competent jurisdiction will
determine the reasonableness of such fees and costs.
j)
Owner. For purposes of this Agreement, Oakland University students shall not
be deemed to be the Owner or agents thereof.
k)
Occupancy Rates.
Premises.
Owner provides no guarantee of the occupancy rate of the
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first written above.
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ATTEST:
COMPANY:
COMCAST CABLEVISION OF THE SOUTH, INC.
________________________________
By:_______________________________________
Name:Kevin J. Gardner
Title: Vice President of Sales and Marketing
Date:_____________________
________________________________
WITNESS/ATTEST:
OWNER:
OAKLAND UNIVERSITY, a Michigan
constitutional body corporate
_______________________________
By:_______________________________________
Name:
Title:
Date:____________________
_______________________________
STATE OF MICHIGAN
COUNTY OF OAKLAND
)
) ss.
)
The foregoing instrument was acknowledged before me this ____ day of
___________________, 2002, by Kevin J. Gardner, of Comcast Cablevision of the South, Inc.,
on behalf of the corporation. He is personally known to me and did not take an oath.
___________________________________
_______________________ Notary Public
My Commission Expires: _____________
STATE OF MICHIGAN
)
) ss.
7
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ____ day of
__________________, 2002, by _______________________________________________, of
______________________________________, on behalf of the corporation. He/she is
(personally known to me) or (has presented ______________________ (type of identification) as
identification and did/did not take an oath.
___________________________________
_______________________ Notary Public
My Commission Expires: _____________
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